Think about tort law litigation as one of society's policy choices for dealing with the damages caused by pollution--the legal claims of trespass, negligence, strict liability, and nuisance are all different ways of deciding when we will make polluters pay for the costs of pollution

Individuals that suffer harm from pollution may use tort law as a remedy for several reasons, despite some major barriers for plaintiffs. Foremost, tort law covers a wide range of injuries that are directly applicable to problems of pollution. Though tort law is broad in application regarding personal injury, an individual would best choose a tort law claim that parallels the available evidence to ensure the desired outcome, whether paid damages or an injunction. When the plaintiff meets the conditions relative to the claim and contains the evidence necessary to prove the case, tort law provides individuals an effective and legal means to stop polluters.

By design, the choice of the claim, be it intentional tort, negligence, strict liability, or private and public nuisance, also coincides with the difficulties in providing the burden of evidence. In these tort cases the plaintiff must prove the defendant’s duty to act, the breach of duty, the but-for clause, the proximate cause, as well as quantifiable damages. Moreover, even in the more simple negligence case, damages and direct causation to the defendant must be proven. This difficulty is furthered by the courts adamancy that tort law remains a means for private injury and not that of wide-spread policy. Furthermore, trespass and negligence claims are only available to landowners. Last, tort law is applied in retrospect and can only be applied after damages have taken place. The beforementioned facts severely limit the scope of tort law in the context of larger environmental policy, relegating it to specific circumstances where the burden of proof is easily met, and the criteria of the plaintiff is clearly fulfilled.